31 W. Va. 82 | W. Va. | 1888
In 1871, the Splint Coal Company, a corporation, was created and organized under the laws of this State for the purpose of mining coal, manufacturing iron and salt, and for other purposes. Between the date of its organization and December 1,1875, the said company had become the owner and vested with the legal title to a large body of land, nearly 3,000 acres, situated on the south side of the Kanawha river, a short distance above the city of Charleston, in Kanawha county, of which about 900 acres was bottom land and the residue was hill land, with the improvements thereon, consisting of 2 salt furnaces, 23 salt wells, 5 mansion houses, 94 laborers’ houses, and other buildings and improvements. These lands were purchased in tracts from a number of different persons, and many of the tracts were incumbered by vendor’s and other liens, and the vendors conveyed them to the company subject to these prior incumbrances, the company assuming to pay off said liens as a part of the purchase-money, and executing its bonds for the residue, for which vendor’s liens were retained by the respective vendors to the company. These liens, together with the judgments recovered against the company after the lands had been conveyed to it, made the aggregate amount of the liens
Appeal of Smith and Brooks. By deed, dated December 22,1870, B. H. Smith and F. F. Brooks conveyed to the Splint Coal Company 15 acres of bottom land, and their undivided interests in certain hill lands appurtenant thereto, in which deed they retained a vendor’s lien to secure the payment of $13,000.00 purchase-money evidenced by five notes payable from one to five years after date. Immediately after the company executed the coupon trust- deed hereinbefore mentioned, Smith and Brooks accepted from the company 19 of its coupon bonds in satisfaction of the balance then due on said vendor’s lien, and a due-bill for $218.20 held by Smith against the company, and they thereupon surrendered the said purchase-money notes, and executed and delivered to the company the following release:
“ We, B. H. Smith and F. F. Brooks, hereby release the right reserved to us in a conveyance executed by us, and our respective wives, dated the 22d day of December, 1870, and recorded in the clerk’s office of the County Court of Kanawha county, W. Va., in deed-book No. 27, pages 233 and 4, the sum therein secured being partly paid, and the residue adjusted by bonds or notes otherwise secured. Witness our hands and seals this 1st of December, 1875.
u Benj. H. Smith. [seal.] “Feed F. Brooks, [seal.]”
This release was duly acknowledged by B. H. Smith on January 17,1876, and on that day admitted to record in the clerk’s office of Kanawha county. The petition of Smith and Brooks, before referred to, was filed April 21, 1881, to obtain the benefit of the vendor’s lien retained by them in the said deed of December 22, 1870, or, if this be not allowed, that then so many of said coupon bonds as may be necessary be applied to the discharge of liens on the real estate of the company having priority over said coupon trust-deed before any of them are applied to debts not such prior liens. The grounds alleged for the relief thus prayed are (1) that the paper executed by them was not executed “ in satisfaction of
The proof shows that B. H. Smith, who was an able lawyer and good business man, was fully aware of all the facts, that before he executed said release, he had examined the provisions of said trust-deed, and the resolution authorizing it, and that he accepted said coupon bonds and executed said release freely, upon his own knowledge of the facts, and urged others to do the same. In this transaction he acted both for himself and associate, Brooks. In his deposition taken in this cause, October 31, 1879, three years after this suit had been commenced, but before he filed his petition in it, the said B. H. Smith says: “I have sixteen of them, (coupon bonds,) not as collateral, but as absolute owner. Fred Brooks and I released certain liens against Splint Ooal Company, and we took bonds in satisfaction of our debts or liens, as aforesaid. Brooks, I believe, has seven bonds owned by him, and also one other bond of which he owns one half and I the other half. He has them with him in Baltimore, I believe. Brooks and I sold some land to Dr. J. P. Hale, a portion of which is the property of Splint Coal Company, and took these bonds for the balance due us, releasing our lien thereon. The two bonds numbered 80 and 811 got, as stated, for value received. I now produce all of said bonds except those in the hands of said Brooks.”
This, it seems to me, is conclusive of the purpose of the transaction, and shows clearly that the parties intended to accept the coupon bonds in satisfaction of their vendor’s lien, and that the paper-writing was intended to be, what it is in fact, an absolute release of the lien.
But it is insisted that the provisions of the resolution authorizing the trust-deed and the issue of the coupon bonds were conditional, and that, unless all the prior liens were released by the acceptance of coupon bonds, then any who may have accepted such bonds and released their liens are not bound. In determining this question, parol testimony, which does not
It is plain that the exchange included all debts of every nature due from the company, including not only the prior liens, but the liens placed by the company. These were all to be taken up so far as it could be done, and preference given to those holding liens. The language implies that it was anticipated that some of the lien-creditors would refuse to exchange their prior liens for coupon bonds, and therefore it provided for taking up such liens only so far as it could be done. And the words, “ giving preference to the liens,” would be meaningless, if nothing but liens were to be taken up and exchanged for bonds. The fact that the appellant, Smith, in this transaction, included anote of $248.20 for which he had no lien, and took a coupon bond or part of one for it, shows that he did not understand that the bonds were to be used wholly to take up prior liens. In his interpretation of this resolution I fully concur. It authorized the taking up of any and all kinds of indebtedness of the company, whether such indebtedness was evidenced by simple contract, liens, or otherwise, and the only limitation was that the liens should have the preference in the event the bonds were not sufficient to take up all the debts. For these reasons I am of the opinion that the decree must be affirmed as to these appellants.
Appeal of D. C. Gallagher, Trustee. At the time the Splint Coal Company acquired the legal title to a portion of
“ Charleston, W. Va., July 19, 1876. I have this day received from the Splint Coal Company four of their coupon bonds, Nos. 78, 79, 80, 81, for $500.00 each, in settlement of $2,000.00, part of balance due as of June 1,1876, on note of $2,750.00, executed August 10,1852, by D. J. W. Clarkson to B. M. Noyes, trustee for Mrs. Cynthia Noyes, and payable October 1, 1860, with interest from October 1, 1859; also received coupon bond No. 83, for $500.00; $211.74 is in full settlement of above described note as of 1st June, 1876, and said bond No. 83 is partly for settlement of $158.93, balance due on note of said Clarkson as of 1st June, 1876, held by Mrs. Ellen Rand, and who has this day received from Splint Coal Company their coupon bond No. 82 for $500.00, which settles in full ($658.93) the balance due as of 1st June, 1876, and the said Clarkson note held by her; and, the said notes being thus fully settled, the lien of the trust-deed securing said note is to be released as to them as to $2,211.70.”
This paper is signed “Isaac N. Smith, Adm’r of Mrs.C. Noyes, dec’d. Smith & Knight, Attorneys for Mrs. Ellen Rand.”
Of the six bonds thus received, No. 82 was for an individual debt of Mrs. Ellen Rand, and has no concern in this controversy. No. 83 was partly for Mrs. Rand and partly for the Noyes debt, and Nos. 78,79, 80, and 81 were the only ones received wholly on account of the Noyes debt. None of these last-mentioned four bonds has been filed in this cause by Isaac N. Smith, administrator, Bradford M. Noyes, trustee, or his successor, D. 0. Gallagher. Nos. 80 and 81 have been filed by B. H. Smith, and it is proved that he is the absolute owner of them, they having been passed by Isaac N. Smith, administrator, to Bradford N. Noyes, as distributee of Mrs.
The question recurs, did the administrator accept the bonds in satisfaction of the original debt? The cases of Stuart v. Abbott, 9 Gratt, 252, and Coles v. Withers, 33 Gratt. 186, are relied on to show that the action of the administrator did not release the lien of the original debt. The first
The Appeal of Grogan. On July 8, 1882, Jesse H. Gro-gan filed his answer and cross-bill in this cause, the substance of which is that, in 1870, James M. Laidley sold to the Splint Goal Company several tracts or parcels of land, part of the lands embraced in the coupon trust-deed of December 1,1875, hereinbefore mentioned, and as apart of the purchase-money therefor said company executed to Laidley two notes of $1,750.00 each, dated December 17,1870; that Laidley assigned said notes to Grogan, and represented to him that a vendor’s lien was retained on the land to secure their payment; that afterwards said Laidley and others conveyed this and other lands to said company by deed in which no
The defendants, J. M. Laidley, Joseph Shields, N. B. Cabell and others, answered said cross-bill. J. M. Laid-ley answered that if he represented to Grogan that the notes assigned to him were secured by vendor’s liens, such representation was then true, but that he subsequently, “in an unguarded moment,” conveyed the land without retaining any such lien. Joseph Shields and other defendants answered denying specifically all the material allegations of the cross-bill which could in any way affect the priority, validity, or the security of their respective liens or debts.
Grogan also excepted to the report of the commissioner, but some of these exceptions are too vague and general to be effective for any purpose under the settled rule of this Court. McCarty v. Chalfant, 14 W. Va. 531. Others are based upon extrinsic facts, which the exceptant failed to prove or make a part of the record; and others still relate to matters which could by no possibility benefit the exceptant. While it is possible these latter exceptions, if sustained, might affect the rights of some of the appellees, still as they do not relate to or affect the rights of Grogan, they will not be considered by this Court at his instance. The whole of the record does not appear in the transcript before us, and it would therefore be not only gratuitous, but taking the hazard of doing injustice, for this Court to undertake to decide questions not insisted upon by any party having the right to call for their decision, and especially when the parties having such right have expressly waived it, as all the appellees have done in this cause. I am therefore of opinion that the rights of the appellant, Grogan, were not prejudiced by the action of the Circuit Court in respect to any of the matters hereinbefore considered.
But it does appear, however, by the report of the commissioner, that the first judgment of Grogan was recovered November 19,1875, and docketed February 9,1876, within 90 days after its date, thus giving it priority over the coupon trust-deed of December 1,1875; and it appearing that this judgment has by inadvertence been wholly omitted from the final decree, it is therefore ordered, according to our statute (section 6, ch. 134 Code,) that the said decree of January 7, 1887, be corrected by inserting the amount of this judgment at its aggregate amount of $3,644.61 as of December 1,1885, as the fifth judgment lien on the real estate of the company, giving it priority over the lien of the said coupon trust-deed, and following next in priority to the judg
Aeeirmed.